Citation Nr: 19152185 Decision Date: 07/05/19 Archive Date: 07/05/19 DOCKET NO. 17-08 856 DATE: July 5, 2019 Service connection for hepatitis C is denied. A rating in excess of 40 percent for seizure disorder is denied. REMANDED The issue of service connection for obstructive sleep apnea is remanded. The issue of service connection for hypertension is remanded. The issue of service connection for prostate condition is remanded. The issue of service connection for headache disorder is remanded. The issue of service connection for dental disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence does not demonstrate that the Veteran’s hepatitis C infection was acquired during active service, or is otherwise etiologically attributable to any aspect of his active duty service. 2. The Veteran’s seizure disorder was manifested by no more than 1 major seizure in 6 months over the prior year. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.301, 3.303. 2. The criteria for a rating in excess of 40 percent for seizure disorder, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1-4.16, 4.121, 4.124a, Diagnostic Code (DC) 8910. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1978 to November 1984. The Board observes that additional VA treatment records were received following the last adjudication by the agency of original jurisdiction (AOJ) in the January 2017 statement of the case (SOC). The Board has reviewed these records and observes that they are pertinent to the issues on appeal; however, in April 2019, the Veteran waived AOJ consideration of the additional evidence. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1131. Generally, to establish a right to compensation for a present disability, a veteran must show (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for disability shown after service, when all the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). 1. Entitlement to service connection for hepatitis C VA recognizes a number of risk factors for hepatitis C. Such risk factors include transfusion of blood or blood products before 1992, organ transplant before 1992, hemodialysis, tattoos, body piercing, IV drug use (from shared instruments), high-risk sexual activity, intranasal cocaine (from shared instruments), accidental exposure to blood products as a health care worker, combat medic, or corpsman by percutaneous (through the skin) exposure or mucous membrane exposure, and other direct percutaneous exposure to blood such as by acupuncture with non-sterile needles or the sharing of toothbrushes or shaving razors. VA’s General Counsel has confirmed that direct service connection for a disability that is a result of a claimant’s own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. See VAOPGCPREC 7-99 (1999), 64 Fed. Reg. 52,375 (1999); VAOPGCPREC 2-98 (1998), 63 Fed. Reg. 31,263 (1998). See generally, Allen v. Principi, 237 F. 3d 1368, 1377 (Fed. Cir. 2001). Analysis The Veteran asserts that his hepatitis C is due to military service. The Veteran has a current diagnosis of hepatitis C. As such, element one under Shedden is met. The Veteran did not raise any specific details or arguments to support his assertion that his hepatitis C resulted from an in-service event. In February 2016, VA requested information from the Veteran regarding his risk factors for hepatitis C; however, the Veteran did not respond to the request for evidence. His service treatment records (STRs) do not document complaints, treatments, or diagnosis of hepatitis C. During his January 1978 enlistment physical examination and September 1981 reenlistment examination, the Veteran noted that he did not have liver trouble. Clinically, his abdomen and viscera were noted to be normal. There were no tattoos noted on the exams. In October 1984, the Veteran was medically retired due to an unrelated disability. The Veteran’s post-service treatment records document complaints, treatments, and a 1997 diagnosis of hepatitis C. In June 2011, the Veteran was seen at the Connecticut HCS for an evaluation of hepatitis C. The examiner stated it was unknown how the Veteran contracted hepatitis C; however, the Veteran had tattoos and used nasal cocaine/crack for 20 years. It was also noted that the Veteran had been a heroin user for over 20 years. He reported snorting seven to ten bags daily. The Veteran was treated for his drug abuse; however, he relapsed during his initial hepatitis C treatment. Based on the evidence of record, the Board finds that service connection for the Veteran’s hepatitis C is not warranted. During his June 2011 initial hepatitis C evaluation, the examiner noted that the Veteran had tattoos. Although the Veteran’s separation examination is not available, there is no evidence that the Veteran obtained the tattoos in service. From around 1991, the Veteran began snorting seven to ten bags of cocaine/heroin a day. He used drugs for over 20 years. The Veteran was treated for his drug addiction but relapsed during his hepatitis C treatment. The Board finds the frequency of the Veteran’s drug use went beyond isolated and infrequent. Therefore, the evidence indicates that the Veteran’s drug use and post-service tattoo most likely caused his hepatitis C. As there is no evidence that the Veteran’s tattoos were obtained during service and service connection is precluded for a disability resulting from a claimant’s drug abuse, the claim of service connection for hepatitis C must be denied. Additionally, the first medical evidence of hepatitis C was in 1997, i.e., over 13 years after his discharge from active service. The fact that there were no records of any complaints or treatment involving the Veteran’s hepatitis C for many years weighs against the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the veteran’s entire medical history, including a lengthy period of absence of complaints). The Board has considered the Veteran and his representative’s statements regarding the etiology of the Veteran’s hepatitis C. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a nexus between hepatitis C and service, is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Additionally, the medical evidence of record does not contain a nexus opinion by a medical professional relating the Veteran’s hepatitis C to his active service. The Board acknowledges that there is no VA opinion regarding the Veteran’s theory of entitlement; however, as there is no credible lay evidence or competent medical evidence indicating that the Veteran’s hepatitis C was present in service or may be associated with his active service, a medical nexus opinion is not warranted, as even the low standard in McLendon v. Nicholson, 20 Vet. App. 27 (2006), is not met. See 38 C.F.R. § 3.159(c)(4); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (a conclusory lay nexus statement is not sufficient to trigger VA’s duty to provide an examination). In sum, the Board finds that service connection for hepatitis C is not warranted. The Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against this claim, that doctrine is not applicable. See 38 U.S. C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to a rating in excess of 40 percent for seizure disorder Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. Disabilities must be reviewed in relation to their history. Where there is a question as to which of two evaluations apply, the Board assigns the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Accordingly, separate ratings may be assigned for separate periods of time based on the facts found, which is a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See id. (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans’ Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). The Veteran’s complex-partial seizures is rated under the General Rating Formula for Major and Minor Epileptic Seizures under 38 C.F.R. § 4.124a, DC 8911. The General Rating Formula for Major and Minor Epileptic Seizures provides that epilepsy with at least 1 major seizure in the last 6 months or 2 in the last year; or averaging at least 5 to 8 minor seizures weekly, is rated 40 percent disabling. Epilepsy averaging at least 1 major seizure in 4 months over the last year; or 9-10 minor seizures per week, is rated 60 percent disabling. Epilepsy averaging at least 1 major seizure in 3 months over the last year; or more than 10 minor seizures weekly is rated 80 percent disabling. Epilepsy averaging at least 1 major seizure per month over the last year is rated 100 percent disabling. See DD 8911. A major seizure is characterized by generalized tonic-clonic convulsion with unconsciousness. A minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head (pure petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). 38 C.F.R. § 4.124a, DC 8910, Note (1), (2). The General Rating Formula provides that there will be no distinction between diurnal and nocturnal major seizures. 38 C.F.R. § 4.124a, Note (3). Note (1) to the General Rating Formula for Major and Minor Epileptic Seizures provides that, when continuous medication is shown necessary for the control of epilepsy, the minimum rating will be 10 percent. This rating will not be combined with any other rating for epilepsy. Note (2) provides that, in the presence of major and minor seizures, the predominating type of epilepsy is to be rated. Note (3) provides that there will be no distinction between diurnal and nocturnal major seizures. 38 C.F.R. § 4.124a. Analysis The Veteran contends that his seizure disorder is more severe than the rating depicts. In July 2015, the Veteran was seen at the Jersey City CBOC. The Veteran stated that he had had back-to-back seizure episodes in May. During the seizure, he broke a tooth, and experienced bladder and bowel incontinence. He did not seek medical attention. In November 2015, the Veteran was seen at the neurology department at the East Orange VAMC for a follow-up of his complex-partial seizures. The examiner stated that the Veteran may have had a seizure in August 2015. The examiner stated that the Veteran’s seizures began with his head going to the right “shaking” and then within a few seconds he has a generalized tonic-clonic seizure. In April 2016, the Veteran was afforded a VA examination to determine the severity of his seizure disorder. While in service, the Veteran was playing basketball and collided with another player. He passed out. After that incident, he had a seizure. The examiner confirmed the Veteran’s seizure disorder (epilepsy). The Veteran required continuous medication for his condition. He had at least one major psychomotor seizure in the prior two years or less and one in the past six months. He had not had minor, major, or minor psychomotor seizures. He never had epilepsy associated with a nonpsychotic organic brain syndrome or epilepsy associated with a psychotic disorder, psychoneurotic disorder, or personality disorder. He did not have any scars related to his condition. The Veteran’s disorder did not impact his ability to work. In May 2016, the Veteran underwent an EEG. His EEG was negative for epileptiform activities. The examiner stated that the Veteran’s last seizure was in January 2016. Additionally, during an August 2018 examination, the examiner noted that the Veteran’s last seizure was over two years prior to the exam. Based on the foregoing, the Board finds that a rating in excess of 40 percent is not warranted for the Veteran’s seizure disorder. Under the General Formula, a 60 percent rating is warranted for 1 major seizure in 4 months over the last year, or 9-10 minor seizures per week. The Board notes that the medical and lay evidence suggests that the Veteran had back-to-back seizures in May 2015 where he lost a tooth and experienced bladder and bowel incontinence. Additionally, the Veteran may have had a seizure in August 2015; however, after reviewing the medical evidence, the VA examiner indicated that the Veteran did not have any minor seizures, and the frequency of his major seizures was at least 1 in the past 6 months. As such, a rating in excess of 40 percent is not warranted. Additionally, the Board has considered the Court’s holding that VA may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 61 (2012). However, note (1) General Rating Formula for Major Seizures, indicates that when continuous medication is shown necessary for the control of epilepsy, the minimum evaluation will be 10 percent, but cannot be combined with any other rating for epilepsy. As such, the holding in Jones is not applicable to this case, because the Veteran is already in receipt of 40 percent disability rating. The Board has considered the Veteran and his representative’s statements regarding the severity of the Veteran’s seizure disorder; however, as lay persons, the Veteran and his representative do not have the training or expertise to render a competent opinion which is more probative than the VA examiner’s opinion on this issue, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Therefore, the lay opinions by themselves are outweighed by the VA examiner’s findings. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). As such, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s disability picture more nearly approximates a rating in excess of 40 percent. REASONS FOR REMAND The Veteran has been diagnosed as having obstructive sleep apnea-hypopnea syndrome, hypertension, headaches, and a dental disorder. He contends that his disorders are due to military service. In its May 2016 decision, the AOJ denied service connection for sleep apnea because the medical evidence of record fails to show that this disability has been clinically diagnosed; however, a June 2015 sleep study did diagnose REM obstructive sleep apnea-hypopnea syndrome. As such, the Board finds that a remand is necessary to provide a VA examination to determine the nature and etiology of his sleep apnea. McLendon v. Nicholson, 20 Vet. App. 79 (2006). A review of the Veteran’s STRs reveal several instances of elevated blood pressure readings; however, the Veteran has not been afforded a VA examination to determine whether the current hypertension either had its onset during service or is related to the elevated blood pressure readings measured during service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the Board finds that remand is necessary to provide a VA examination. In May 2011, the Veteran was seen for headaches. The Veteran stated that he had a seizure and passed out. Hours later, he woke up from the floor with a constant headache. The Board notes the Veteran has not been afforded a VA examination to determine the nature and etiology of his headache, to include as secondary to his service-connected seizures. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, the issue is remanded to afford the Veteran a VA examination to determine the nature and etiology of his headaches. On his September 1981 reenlistment examination report, the examiner noted that the Veteran’s prostate was tender. His STRs noted a diagnosed and treated for prostatitis. The Board notes the Veteran has not been afforded a VA examination to determine whether his prostate disorder is related to miliary service, to include his in-service diagnosis of prostatitis. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, the issue is remanded to afford the Veteran a VA examination to determine the nature and etiology of his prostate cancer. Regarding his dental disability, the Board notes that the Veteran’s service dental records are not of record. Therefore, the issue is remanded obtain his service records. The matters are REMANDED for the following action: 1. Obtain and associate all outstanding VA and private treatment records with the claims file. 2. Obtain the Veteran’s complete service dental records. Thereafter, complete any further development deemed necessary, to include conducting an examination; however, if the records are unavailable, document the claims file and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 3. Schedule VA examinations to determine the nature and etiology of the Veteran’s sleep apnea, headache disorder, and hypertension. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. All indicated studies should be performed, and all findings should be reported. Based on a review of the entire record, the examiner must opine: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea had its onset during the Veteran’s service or is otherwise etiologically related to his service. b. Whether it is as least as likely as not (50 percent or greater probability) that the Veteran’s hypertension had its onset in or is otherwise related to service, to include the elevated blood pressure readings during service. c. Whether it is as least as likely as not (50 percent or greater probability) that the Veteran’s prostate cancer had its onset in or is otherwise related to service, to include his in-service prostatitis diagnosis. d. Regarding his headaches, the examiner should opine: i. Whether it is at least as likely as not (50 percent or greater probability) that the headache disorder had its onset in or was otherwise caused by active service. ii. If the answer to (i) is no, is it at least as likely as not (50 percent or greater probability) that the headache disorder was caused by or aggravated (i.e. worsened beyond the normal progression of that disease) by the Veteran’s service-connected seizure disorder? If the examiner finds that the headache disorder was aggravated by the service-connected seizure disorder, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. (Continued on the next page)   4. Then, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, furnish the Veteran and his representative a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Henry, Associate Counsel